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inadmissible evidence of the underlying acts, e.g., when offered pursuant to Rule 404(b), or
the fact of a conviction, e.g., when offered under Rule 609.
IV. Statements Made in Connection With Plea Negotiations. If the statements at issue
occurred during a formal plea negotiation process, application of Rule 410 is relatively
simple. However, when the statement at issue is made outside of the formal plea negotiation
process, questions can arise about whether the statement is actually covered by Rule 410
or G.S. 15A-1025.
A. Letters to the Prosecution. In State v. Walker, 167 N.C. App. 110 (2004), the
defendant wrote letters to the prosecutor stating that he was willing to confess and help
in any way in order to get probation. The reviewing court held that the defendant’s
letters, which stated a sought-for plea arrangement, were plea discussions within the
meaning of Rule 410 and G.S. 15A-1025. The court noted that even though the
prosecutor did not initially respond to the letters, they ultimately lead to plea discussions,
which resulted in the defendant entering a guilty plea, which was subsequently
withdrawn. By contrast, in State v. Flowers, 347 N.C. 1 (1997), the North Carolina
Supreme Court held that the defendant’s letter to a prosecutor did not constitute a plea
discussion under G.S. 15A-1025. The court concluded the letter was merely an
admission of guilt, a statement of the defendant’s desire that the co-defendants not be
tried for the crime, a request to have counsel removed, and a mention of a possibility of
a plea bargain. The letter did not state the plea that the defendant had in mind or other
specifics, and the prosecutor never responded to defendant’s letter, did not engage in
plea discussions with the defendant, and did not enter into a plea arrangement with the
defendant.
B. Defendant’s Belief Must Be Reasonable. In State v. Curry, 153 N.C. App. 260 (2002),
the court articulated and applied the standard that “conversations with government
agents do not constitute plea discussions unless the defendant exhibits a subjective
belief that he is negotiating a plea, and that belief is reasonable under the
circumstances.” (quotation omitted). In that case, the defendant was charged with,
among other things, statutory rape. An assistant district attorney told defense counsel
that “there may be possibilities of [Defendant] pleading to a string of indecent libert[y]
[charges] although that was not an offer.” The assistant district attorney made it clear
that she had no authority to negotiate a plea bargain but indicated that the State might
consider an offer if the defendant cooperated in the investigation. Based on this
conversation, defense counsel told the defendant to cooperate in the hope that they
“could work out a plea to something less than a charge of statutory rape,” and the
defendant later made incriminating statements to law enforcement officers. The court
held that “[i]n light of the assistant district attorney’s representation that she lacked the
authority to enter plea discussions, there is no evidence to substantiate a reasonable,
subjective belief on the part of Defendant that he was ‘negotiating a plea’ by cooperating
with law enforcement.” The court noted that not only did the assistant district attorney
lack the authority to make an offer, no offer was made and neither the defendant nor
defense counsel ever expressed an intent to plead guilty to certain charges. The court
concluded that because no offer had been made, the defendant’s statement to law
enforcement could not have been made “in the course of plea discussions with an
attorney for the prosecuting authority.”
V. Waiver. In United States v. Mezzanatto, 513 U.S. 196 (1995), the United States Supreme
Court held that a defendant may waive the protections of Federal Evidence Rule 410 and
Rule 11(e)(6) of the Federal Rules of Criminal Procedure, which make inadmissible certain
statements made during plea negotiations. In that case, the defendant was cross-examined
at his federal drug trial about inconsistent statements that he made during earlier plea